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540 U.S. 551

GROHv.

RAMIREZ ET AL.

No. 02-811.

Supreme Court of United States.

Argued November 4, 2003. Decided February 24, 2004.

Petitioner, a Bureau of Alcohol, Tobacco and Firearms agent, preparedand signed an application for a warrant to search respondents' Montanaranch, which stated that the search was for specified weapons, explosives,and records. The application was supported by petitioner's detailedaffidavit setting forth his basis for believing that such items were on theranch and was accompanied by a warrant form that he completed. TheMagistrate Judge (Magistrate) signed the warrant form even though it didnot identify any of the items that petitioner intended to seize. The portioncalling for a description of the "person or property" described respondents'house, not the alleged weapons; the warrant did not incorporate byreference the application's itemized list. Petitioner led federal and locallaw enforcement officers to the ranch the next day but found no illegalweapons or explosives. Petitioner left a copy of the warrant, but not theapplication, with respondents. Respondents sued petitioner and othersunder Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, and42 U. S. C. § 1983, claiming, inter alia, a Fourth Amendment violation.The District Court granted the defendants summary judgment, finding noFourth Amendment violation, and finding that even if such a violationoccurred, the defendants were entitled to qualified immunity. The NinthCircuit affirmed except as to the Fourth Amendment claim against

petitioner, holding that the warrant was invalid because it did not describewith particularity the place to be searched and the items to be seized. Thecourt also concluded that United States v. Leon, 468 U. S. 897, precludedqualified immunity for petitioner because he was the leader of a searchwho did not read the warrant and satisfy himself that he understood itsscope and limitations and that it was not obviously defective.

Held:

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1. The search was clearly "unreasonable" under the Fourth Amendment.Pp. 557-563.

(a) The warrant was plainly invalid. It did not meet the FourthAmendment's unambiguous requirement that a warrant "particularlydescrib[e] ... the persons or things to be seized." The fact that the

application adequately described those things does not save the warrant;Fourth Amendment interests are not necessarily vindicated when another document says something about the objects of the search, but thatdocument's contents are neither known to the person whose home is beingsearched nor available for her inspection. It is not necessary to decidewhether the Amendment permits a warrant to cross-reference other documents, because such incorporation did not occur here. Pp. 557-558.

(b) Petitioner's argument that the search was nonetheless reasonable isrejected. Because the warrant did not describe the items at all, it was soobviously deficient that the search must be regarded as warrantless, andthus presumptively unreasonable. This presumptive rule applies tosearches whose only defect is a lack of particularity in the warrant.Petitioner errs in arguing that such searches should be exempt from the

presumption if they otherwise satisfy the particularity requirement's goals.Unless items in the affidavit are set forth in the warrant, there is nowritten assurance that the Magistrate actually found probable cause for asearch as broad as the affiant requested. The restraint petitioner showed inconducting the instant search was imposed by the agent himself, not a

judicial officer. Moreover, the particularity requirement's purpose is notlimited to preventing general searches; it also assures the individual whose

property is searched and seized of the executing officer's legal authority,his need to search, and the limits of his power to do so. This case presentsno occasion to reach petitioner's argument that the particularityrequirements' goals were served when he orally described the items torespondents, because respondents dispute his account. Pp. 558-563.

2. Petitioner is not entitled to qualified immunity despite the constitutionalviolation because "it would be clear to a reasonable officer that hisconduct was unlawful in the situation he confronted," Saucier v. Katz, 533U. S. 194, 202. Given that the particularity requirement is stated in theConstitution's text, no reasonable officer could believe that a warrant thatdid not comply with that requirement was valid. Moreover, because

petitioner prepared the warrant, he may not argue that he reasonably reliedon the Magistrate's assurance that it contained an adequate description andwas valid. Nor could a reasonable officer claim to be unaware of the basicrule that, absent consent or exigency, a warrantless search of a home is

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presumptively unconstitutional. "[A] warrant may be so facially deficient... that the executing officers cannot reasonably presume it to be valid."

Leon, 468 U. S., at 923. This is such a case. Pp. 563-565.

298 F.3d 1022, affirmed.

STEVENS, J., delivered the opinion of the Court, in which O'CONNOR,SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed adissenting opinion, in which REHNQUIST, C. J., joined, post, p. 566.THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, andin which REHNQUIST, C. J., joined as to Part III, post, p. 571.

1 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT.

2 Richard A. Cordray argued the cause for petitioner. With him on the briefs was Harry Litman.

3 Austin C. Schlick argued the cause for the United States as amicus curiaeurging reversal. With him on the brief were Solicitor General Olson, Assistant

Attorney General McCallum, Deputy Solicitor General Clement, Barbara L.

Herwig, and Howard S. Scher.

4 Vincent J. Kozakiewicz argued the cause for respondents. With him on the brief was W. G. Gilbert III. *

5 JUSTICE STEVENS delivered the opinion of the Court.

6 Petitioner conducted a search of respondents' home pursuant to a warrant thatfailed to describe the "persons or things to be seized." U. S. Const., Amdt. 4.The questions presented are (1) whether the search violated the FourthAmendment, and (2) if so, whether petitioner nevertheless is entitled toqualified immunity, given that a Magistrate Judge (Magistrate), relying on anaffidavit that particularly described the items in question, found probable causeto conduct the search.

7 * Respondents, Joseph Ramirez and members of his family, live on a largeranch in Butte-Silver Bow County, Montana. Petitioner, Jeff Groh, has been aSpecial Agent for the Bureau of Alcohol, Tobacco and Firearms (ATF) since1989. In February 1997, a concerned citizen informed petitioner that on a

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number of visits to respondents' ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and arocket launcher. 1 Based on that information, petitioner prepared and signed anapplication for a warrant to search the ranch. The application stated that thesearch was for "any automatic firearms or parts to automatic weapons,destructive devices to include but not limited to grenades, grenade launchers,

rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers." App. toPet. for Cert. 28a. Petitioner supported the application with a detailed affidavit,which he also prepared and executed, that set forth the basis for his belief thatthe listed items were concealed on the ranch. Petitioner then presented thesedocuments to a Magistrate, along with a warrant form that petitioner also hadcompleted. The Magistrate signed the warrant form.

8 Although the application particularly described the place to be searched and thecontraband petitioner expected to find, the warrant itself was less specific; itfailed to identify any of the items that petitioner intended to seize. In the portionof the form that called for a description of the "person or property" to be seized,

petitioner typed a description of respondents' two-story blue house rather thanthe alleged stockpile of firearms. 2 The warrant did not incorporate by referencethe itemized list contained in the application. It did, however, recite that theMagistrate was satisfied the affidavit established probable cause to believe that

contraband was concealed on the premises, and that sufficient grounds existedfor the warrant's issuance. 3

9 The day after the Magistrate issued the warrant, petitioner led a team of lawenforcement officers, including both federal agents and members of the localsheriff's department, in the search of respondents' premises. Althoughrespondent Joseph Ramirez was not home, his wife and children were.Petitioner states that he orally described the objects of the search to Mrs.

Ramirez in person and to Mr. Ramirez by telephone. According to Mrs.Ramirez, however, petitioner explained only that he was searching for "`anexplosive device in a box.'" Ramirez v. Butte-Silver Bow County, 298 F. 3d1022, 1026 (CA9 2002). At any rate, the officers' search uncovered no illegalweapons or explosives. When the officers left, petitioner gave Mrs. Ramirez acopy of the search warrant, but not a copy of the application, which had beensealed. The following day, in response to a request from respondents' attorney,

petitioner faxed the attorney a copy of the page of the application that listed the

items to be seized. No charges were filed against the Ramirezes.

10 Respondents sued petitioner and the other officers under Bivens v. SixUnknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and Rev. Stat. § 1979,

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II

42 U. S. C. § 1983, raising eight claims, including violation of the FourthAmendment. App. 17-27. The District Court entered summary judgment for alldefendants. The court found no Fourth Amendment violation, because itconsidered the case comparable to one in which the warrant contained aninaccurate address, and in such a case, the court reasoned, the warrant issufficiently detailed if the executing officers can locate the correct house. App.

to Pet. for Cert. 20a-22a. The court added that even if a constitutional violationoccurred, the defendants were entitled to qualified immunity because the failureof the warrant to describe the objects of the search amounted to a mere"typographical error." Id., at 22a-24a.

11 The Court of Appeals affirmed the judgment with respect to all defendants andall claims, with the exception of respondents' Fourth Amendment claim against

petitioner. 298 F. 3d, at 1029-1030. On that claim, the court held that the

warrant was invalid because it did not "describe with particularity the place to be searched and the items to be seized," and that oral statements by petitioner during or after the search could not cure the omission. Id., at 1025-1026. Thecourt observed that the warrant's facial defect "increased the likelihood anddegree of confrontation between the Ramirezes and the police" and deprivedrespondents of the means "to challenge officers who might have exceeded thelimits imposed by the magistrate." Id., at 1027. The court also expressedconcern that "permitting officers to expand the scope of the warrant by oral

statements would broaden the area of dispute between the parties in subsequentlitigation." Ibid. The court nevertheless concluded that all of the officers except

petitioner were protected by qualified immunity. With respect to petitioner, thecourt read our opinion in United States v. Leon, 468 U. S. 897 (1984), as

precluding qualified immunity for the leader of a search who fails to "read thewarrant and satisfy [himself] that [he] understand[s] its scope and limitations,and that it is not defective in some obvious way." 298 F. 3d, at 1027. The courtadded that "[t]he leaders of the search team must also make sure that a copy of

the warrant is available to give to the person whose property is being searchedat the commencement of the search, and that such copy has no missing pages or other obvious defects." Ibid. (footnote omitted). We granted certiorari. 537 U.S. 1231 (2003).

12 The warrant was plainly invalid. The Fourth Amendment states unambiguously

that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " (Emphasis added.) The warrant in this casecomplied with the first three of these requirements: It was based on probable

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cause and supported by a sworn affidavit, and it described particularly the placeof the search. On the fourth requirement, however, the warrant failedaltogether. Indeed, petitioner concedes that "the warrant . . . was deficient in

particularity because it provided no description of the type of evidence sought."Brief for Petitioner 10.

13 The fact that the application adequately described the "things to be seized" doesnot save the warrant from its facial invalidity. The Fourth Amendment by itsterms requires particularity in the warrant, not in the supporting documents. See

Massachusetts v. Sheppard, 468 U. S. 981, 988, n. 5 (1984) ("[A] warrant thatfails to conform to the particularity requirement of the Fourth Amendment isunconstitutional"); see also United States v. Stefonek, 179 F. 3d 1030, 1033(CA7 1999) ("The Fourth Amendment requires that the warrant particularlydescribe the things to be seized, not the papers presented to the judicial officer .

. . asked to issue the warrant" (emphasis in original)). And for good reason:"The presence of a search warrant serves a high function," McDonald v. United States, 335 U. S. 451, 455 (1948), and that high function is not necessarilyvindicated when some other document, somewhere, says something about theobjects of the search, but the contents of that document are neither known to the

person whose home is being searched nor available for her inspection. We donot say that the Fourth Amendment forbids a warrant from cross-referencingother documents. Indeed, most Courts of Appeals have held that a court may

construe a warrant with reference to a supporting application or affidavit if thewarrant uses appropriate words of incorporation, and if the supportingdocument accompanies the warrant. See, e.g., United States v. McGrew, 122 F.3d 847, 849-850 (CA9 1997); United States v. Williamson, 1 F. 3d 1134, 1136,n. 1 (CA10 1993); United States v. Blakeney, 942 F. 2d 1001, 1025-1026 (CA61991); United States v. Maxwell, 920 F. 2d 1028, 1031 (CADC 1990); United States v. Curry, 911 F. 2d 72, 76-77 (CA8 1990); United States v. Roche, 614F. 2d 6, 8 (CA1 1980). But in this case the warrant did not incorporate other

documents by reference, nor did either the affidavit or the application (whichhad been placed under seal) accompany the warrant. Hence, we need notfurther explore the matter of incorporation.

14 Petitioner argues that even though the warrant was invalid, the searchnevertheless was "reasonable" within the meaning of the Fourth Amendment.He notes that a Magistrate authorized the search on the basis of adequateevidence of probable cause, that petitioner orally described to respondents the

items to be seized, and that the search did not exceed the limits intended by theMagistrate and described by petitioner. Thus, petitioner maintains, his search of respondents' ranch was functionally equivalent to a search authorized by a validwarrant.

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15We disagree. This warrant did not simply omit a few items from a list of manyto be seized, or misdescribe a few of several items. Nor did it make what fairlycould be characterized as a mere technical mistake or typographical error.Rather, in the space set aside for a description of the items to be seized, thewarrant stated that the items consisted of a "single dwelling residence . . . bluein color." In other words, the warrant did not describe the items to be seized at

all. In this respect the warrant was so obviously deficient that we must regardthe search as "warrantless" within the meaning of our case law. See Leon, 468U. S., at 923; cf. Maryland v. Garrison, 480 U. S. 79, 85 (1987); Steele v.United States, 267 U. S. 498, 503-504 (1925). "We are not dealing withformalities." McDonald, 335 U.S., at 455. Because "`the right of a man toretreat into his own home and there be free from unreasonable governmentalintrusion'" stands "'[a]t the very core' of the Fourth Amendment," Kyllo v.United States, 533 U. S. 27, 31 (2001) (quoting Silverman v. United States, 365

U. S. 505, 511 (1961)), our cases have firmly established the "`basic principleof Fourth Amendment law' that searches and seizures inside a home without awarrant are presumptively unreasonable," Payton v. New York, 445 U. S. 573,586 (1980) (footnote omitted). Thus, "absent exigent circumstances, awarrantless entry to search for weapons or contraband is unconstitutional evenwhen a felony has been committed and there is probable cause to believe thatincriminating evidence will be found within." Id., at 587-588 (footnoteomitted). See Kyllo, 533 U. S., at 29; Illinois v. Rodriguez, 497 U. S. 177, 181

(1990); Chimel v. California, 395 U. S. 752, 761-763 (1969); McDonald, 335U. S., at 454; Johnson v. United States, 333 U. S. 10 (1948).

16 We have clearly stated that the presumptive rule against warrantless searchesapplies with equal force to searches whose only defect is a lack of particularityin the warrant. In Sheppard, for instance, the petitioner argued that even thoughthe warrant was invalid for lack of particularity, "the search was constitutional

because it was reasonable within the meaning of the Fourth Amendment." 468

U. S., at 988, n. 5. In squarely rejecting that position, we explained:

17 "The uniformly applied rule is that a search conducted pursuant to a warrantthat fails to conform to the particularity requirement of the Fourth Amendmentis unconstitutional. Stanford v. Texas, 379 U. S. 476 (1965); United States v.Cardwell, 680 F. 2d 75, 77-78 (CA9 1982); United States v. Crozier, 674 F. 2d1293, 1299 (CA9 1982); United States v. Klein, 565 F. 2d 183, 185 (CA11977); United States v. Gardner, 537 F. 2d 861, 862 (CA6 1976); United States

v. Marti, 421 F. 2d 1263, 1268-1269 (CA2 1970). That rule is in keeping withthe well-established principle that `except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable"unless it has been authorized by a valid search warrant.' Camara v. Municipal

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Court, 387 U. S. 523, 528-529 (1967). See Steagald v. United States, 451 U. S.204, 211-212 (1981); Jones v. United States, 357 U. S. 493, 499 (1958)." Ibid.

18 Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if thegoals served by the particularity requirement are otherwise satisfied. Hemaintains that the search in this case satisfied those goals — which he says are"to prevent general searches, to prevent the seizure of one thing under a warrantdescribing another, and to prevent warrants from being issued on vague or dubious information," Brief for Petitioner 16 — because the scope of the searchdid not exceed the limits set forth in the application. But unless the particular items described in the affidavit are also set forth in the warrant itself (or at leastincorporated by reference, and the affidavit present at the search), there can beno written assurance that the Magistrate actually found probable cause to search

for, and to seize, every item mentioned in the affidavit. See McDonald, 335 U.S., at 455 ("Absent some grave emergency, the Fourth Amendment hasinterposed a magistrate between the citizen and the police. This was done . . .so that an objective mind might weigh the need to invade [the citizen's] privacyin order to enforce the law"). In this case, for example, it is at least theoretically

possible that the Magistrate was satisfied that the search for weapons andexplosives was justified by the showing in the affidavit, but not convinced thatany evidentiary basis existed for rummaging through respondents' files and

papers for receipts pertaining to the purchase or manufacture of such items. Cf.Stanford v. Texas, 379 U.S. 476, 485-486 (1965). Or, conceivably, theMagistrate might have believed that some of the weapons mentioned in theaffidavit could have been lawfully possessed and therefore should not beseized. See 26 U. S. C. § 5861 (requiring registration, but not banning

possession of, certain firearms). The mere fact that the Magistrate issued awarrant does not necessarily establish that he agreed that the scope of thesearch should be as broad as the affiant's request. Even though petitioner acted

with restraint in conducting the search, "the inescapable fact is that this restraintwas imposed by the agents themselves, not by a judicial officer." Katz v. United States, 389 U. S. 347, 356 (1967). 4

19 We have long held, moreover, that the purpose of the particularity requirementis not limited to the prevention of general searches. See Garrison, 480 U. S., at84. A particular warrant also "assures the individual whose property is searchedor seized of the lawful authority of the executing officer, his need to search, and

the limits of his power to search." United States v. Chadwick, 433 U. S. 1, 9(1977) (citing Camara v. Municipal Court of City and County of San

Francisco, 387 U. S. 523, 532 (1967)), abrogated on other grounds, Californiav. Acevedo, 500 U. S. 565 (1991). See also Illinois v. Gates, 462 U. S. 213, 236

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III

(1983) ("[P]ossession of a warrant by officers conducting an arrest or searchgreatly reduces the perception of unlawful or intrusive police conduct"). 5

20 Petitioner argues that even if the goals of the particularity requirement are broader than he acknowledges, those goals nevertheless were served becausehe orally described to respondents the items for which he was searching. Thus,he submits, respondents had all of the notice that a proper warrant would haveaccorded. But this case presents no occasion even to reach this argument, sincerespondents, as noted above, dispute petitioner's account. According to Mrs.Ramirez, petitioner stated only that he was looking for an "`explosive device ina box.'" 298 F. 3d, at 1026. Because this dispute is before us on petitioner'smotion for summary judgment, App. to Pet. for Cert. 13a, "[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in[her] favor," Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986)

(citation omitted). The posture of the case therefore obliges us to credit Mrs.Ramirez's account, and we find that petitioner's description of "`an explosivedevice in a box'" was little better than no guidance at all. See Stefonek, 179 F.3d, at 1032-1033 (holding that a search warrant for "`evidence of crime'" was "[s]o open-ended" in its description that it could "only be described as a generalwarrant").

21 It is incumbent on the officer executing a search warrant to ensure the search islawfully authorized and lawfully conducted. 6 Because petitioner did not have inhis possession a warrant particularly describing the things he intended to seize,

proceeding with the search was clearly "unreasonable" under the FourthAmendment. The Court of Appeals correctly held that the search wasunconstitutional.

22 Having concluded that a constitutional violation occurred, we turn to thequestion whether petitioner is entitled to qualified immunity despite thatviolation. See Wilson v. Layne, 526 U. S. 603, 609 (1999). The answer dependson whether the right that was transgressed was "`clearly established'" — that is,"whether it would be clear to a reasonable officer that his conduct was unlawfulin the situation he confronted." Saucier v. Katz, 533 U. S. 194, 202 (2001).

23 Given that the particularity requirement is set forth in the text of theConstitution, no reasonable officer could believe that a warrant that plainly didnot comply with that requirement was valid. See Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982) ("If the law was clearly established, the immunitydefense ordinarily should fail, since a reasonably competent public official

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should know the law governing his conduct"). Moreover, because petitioner himself prepared the invalid warrant, he may not argue that he reasonably reliedon the Magistrate's assurance that the warrant contained an adequatedescription of the things to be seized and was therefore valid. Cf. Sheppard,468 U. S., at 989-990. In fact, the guidelines of petitioner's own department

placed him on notice that he might be liable for executing a manifestly invalid

warrant. An ATF directive in force at the time of this search warned: "Specialagents are liable if they exceed their authority while executing a search warrantand must be sure that a search warrant is sufficient on its face even when issued

by a magistrate." Searches and Examinations, ATF Order O 3220.1(7)(d) (Feb.13, 1997). See also id., at 3220.1(23)(b) ("If any error or deficiency isdiscovered and there is a reasonable probability that it will invalidate thewarrant, such warrant shall not be executed. The search shall be postponed untila satisfactory warrant has been obtained"). 7 And even a cursory reading of the

warrant in this case—perhaps just a simple glance — would have revealed aglaring deficiency that any reasonable police officer would have known wasconstitutionally fatal.

24 No reasonable officer could claim to be unaware of the basic rule, wellestablished by our cases, that, absent consent or exigency, a warrantless searchof the home is presumptively unconstitutional. See Payton, 445 U. S., at 586-588. Indeed, as we noted nearly 20 years ago in Sheppard: "The uniformly

applied rule is that a search conducted pursuant to a warrant that fails toconform to the particularity requirement of the Fourth Amendment isunconstitutional." 468 U. S., at 988, n. 5. 8 Because not a word in any of our cases would suggest to a reasonable officer that this case fits within anyexception to that fundamental tenet, petitioner is asking us, in effect, to craft anew exception. Absent any support for such an exception in our cases, hecannot reasonably have relied on an expectation that we would do so.

25 Petitioner contends that the search in this case was the product, at worst, of alack of due care, and that our case law requires more than negligent behavior

before depriving an official of qualified immunity. See Malley v. Briggs, 475U. S. 335, 341 (1986). But as we observed in the companion case to Sheppard,"a warrant may be so facially deficient — i. e., in failing to particularize the

place to be searched or the things to be seized — that the executing officerscannot reasonably presume it to be valid." Leon, 468 U. S., at 923. This is sucha case. 9

26 Accordingly, the judgment of the Court of Appeals is affirmed.

27 It is so ordered.

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Notes:

A brief of amici curiae urging reversal was filed for the State of Texas et al. byGreg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Barry

R. McBee, First Assistant Attorney General, Jay Kimbrough, Deputy AttorneyGeneral, and Ryan D. Clinton, Assistant Solicitor General, and by theAttorneys General for their respective States as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Mark J.

Bennett of Hawaii, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi, Brian Sandoval of Nevada, W. A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Lawrence E. Long of South Dakota, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, Christine O. Gregoire of Washington,and Peggy A. Lautenschlager of Wisconsin.

Possession of these items, if unregistered, would violate 18 U. S. C. § 922( o)(1)and 26 U. S. C. § 5861.

The warrant stated: "[T]here is now concealed [on the specified premises] acertain person or property, namely [a] single dwelling residence two story inheight which is blue in color and has two additions attached to the east. The

front entrance to the residence faces in a southerly direction." App. to Pet. for Cert. 26a

The affidavit was sealed. Its sufficiency is not disputed

For this reason petitioner's argument that any constitutional error wascommitted by the Magistrate, not petitioner, is misplaced. In Massachusetts v.Sheppard, 468 U. S. 981 (1984), we suggested that "the judge, not the policeofficers," may have committed "[a]n error of constitutional dimension," id., at990, because the judge had assured the officers requesting the warrant that hewould take the steps necessary to conform the warrant to constitutionalrequirements, id., at 986. Thus, "it was not unreasonable for the police in [that]case to rely on the judge's assurances that the warrant authorized the searchthey had requested." Id., at 989, n. 6. In this case, by contrast, petitioner did notalert the Magistrate to the defect in the warrant that petitioner had drafted, andwe therefore cannot know whether the Magistrate was aware of the scope of the search he was authorizing. Nor would it have been reasonable for petitioner to rely on a warrant that was so patently defective, even if the Magistrate wasaware of the deficiency. See United States v. Leon, 468 U. S. 897, 915, 922, n.23 (1984).

*

1

2

3

4

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It is true, as petitioner points out, that neither the Fourth Amendment nor Rule41 of the Federal Rules of Criminal Procedure requires the executing officer toserve the warrant on the owner before commencing the search. Rule 41(f)(3)

provides that "[t]he officer executing the warrant must: (A) give a copy of thewarrant and a receipt for the property taken to the person from whom, or fromwhose premises, the property was taken; or (B) leave a copy of the warrant and

receipt at the place where the officer took the property." Quite obviously, insome circumstances—a surreptitious search by means of a wiretap, for example, or the search of empty or abandoned premises — it will beimpracticable or imprudent for the officers to show the warrant in advance.See Katz v. United States, 389 U. S. 347, 355, n. 16 (1967); Ker v. California,374 U. S. 23, 37-41 (1963). Whether it would be unreasonable to refuse arequest to furnish the warrant at the outset of the search when, as in this case,an occupant of the premises is present and poses no threat to the officers' safe

and effective performance of their mission, is a question that this case does not present.

The Court of Appeals' decision is consistent with this principle. Petitioner mischaracterizes the court's decision when he contends that it imposed a novel

proofreading requirement on officers executing warrants. The court held thatofficers leading a search team must "mak[e] sure that they have a proper warrant that in fact authorizes the search and seizure they are about toconduct." 298 F. 3d 1022, 1027 (CA9 2002). That is not a duty to proofread; itis, rather, a duty to ensure that the warrant conforms to constitutionalrequirements

We do not suggest that an official is deprived of qualified immunity whenever he violates an internal guideline. We refer to the ATF Order only to underscorethat petitioner should have known that he should not execute a patentlydefective warrant

Although both Sheppard and Leon involved the application of the "good faith"exception to the Fourth Amendment's general exclusionary rule, we haveexplained that "the same standard of objective reasonableness that we appliedin the context of a suppression hearing in Leon defines the qualified immunityaccorded an officer." Malley v. Briggs, 475 U. S. 335, 344 (1986) (citationomitted).

JUSTICE KENNEDY argues in dissent that we have not allowed "`ample room

for mistaken judgments,'" post, at 571 (quoting Malley, 475 U. S., at 343), because "difficult and important tasks demand the officer's full attention in theheat of an ongoing and often dangerous criminal investigation," post, at 568. Inthis case, however, petitioner does not contend that any sort of exigency existed

5

6

7

8

9

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when he drafted the affidavit, the warrant application, and the warrant, or whenhe conducted the search. This is not the situation, therefore, in which we haverecognized that "officers in the dangerous and difficult process of makingarrests and executing search warrants" require "some latitude." Maryland v.Garrison, 480 U. S. 79, 87 (1987).

Nor are we according "the correctness of paper forms" a higher status than"substantive rights." Post, at 571. As we have explained, the FourthAmendment's particularity requirement assures the subject of the search that amagistrate has duly authorized the officer to conduct a search of limited scope.This substantive right is not protected when the officer fails to take the time toglance at the authorizing document and detect a glaring defect that JUSTICEKENNEDY agrees is of constitutional magnitude, post this page.

28 JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, dissenting.

29 I agree with the Court that the Fourth Amendment was violated in this case.The Fourth Amendment states that "no Warrants shall issue, but upon probablecause, supported by Oath or affirmation, and particularly describing the placeto be searched, and the persons or things to be seized." The warrant issued inthis case did not particularly describe the things to be seized, and so did notcomply with the Fourth Amendment. I disagree with the Court on whether theofficer who obtained the warrant and led the search team is entitled to qualifiedimmunity for his role in the search. In my view, the officer should receivequalified immunity.

30 An officer conducting a search is entitled to qualified immunity if "a reasonableofficer could have believed" that the search was lawful "in light of clearlyestablished law and the information the searching officers possessed."

Anderson v. Creighton, 483 U. S. 635, 641 (1987). As the Court notes, this isthe same objective reasonableness standard applied under the "`good faith'"exception to the exclusionary rule. See ante, at 565, n. 8 (citing Malley v.

Briggs, 475 U. S. 335, 344 (1986)). The central question is whether someone inthe officer's position could reasonably but mistakenly conclude that his conductcomplied with the Fourth Amendment. Creighton, supra, at 641. See alsoSaucier v. Katz, 533 U. S. 194, 206 (2001); Hunter v. Bryant, 502 U. S. 224,227 (1991) (per curiam).

31 An officer might reach such a mistaken conclusion for several reasons. He may be unaware of existing law and how it should be applied. See, e. g., Saucier, supra. Alternatively, he may misunderstand important facts about the search

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and assess the legality of his conduct based on that misunderstanding. See, e. g., Arizona v. Evans, 514 U. S. 1 (1995). Finally, an officer may misunderstandelements of both the facts and the law. See, e. g., Creighton, supra. Our qualified immunity doctrine applies regardless of whether the officer's error is amistake of law, a mistake of fact, or a mistake based on mixed questions of lawand fact. Butz v. Economou, 438 U. S. 478, 507 (1978) (noting that qualified

immunity covers "mere mistakes in judgment, whether the mistake is one of fact or one of law").

32 The present case involves a straightforward mistake of fact. Although the Courtdoes not acknowledge it directly, it is obvious from the record below that theofficer simply made a clerical error when he filled out the proposed warrantand offered it to the Magistrate Judge. The officer used the proper descriptionof the property to be seized when he completed the affidavit. He also used the

proper description in the accompanying application. When he typed up thedescription a third time for the proposed warrant, however, the officer accidentally entered a description of the place to be searched in the part of thewarrant form that called for a description of the property to be seized. No onenoticed the error before the search was executed. Although the record is notentirely clear on this point, the mistake apparently remained undiscovered untilthe day after the search when respondents' attorney reviewed the warrant for defects. The officer, being unaware of his mistake, did not rely on it in any

way. It is uncontested that the officer trained the search team and executed thewarrant based on his mistaken belief that the warrant contained the proper description of the items to be seized.

33 The question is whether the officer's mistaken belief that the warrant containedthe proper language was a reasonable belief. In my view, it was. A lawenforcement officer charged with leading a team to execute a search warrant for illegal weapons must fulfill a number of serious responsibilities. The officer

must establish probable cause to believe the crime has been committed and thatevidence is likely to be found at the place to be searched; must articulatespecific items that can be seized, and a specific place to be searched; mustobtain the warrant from a magistrate judge; and must instruct a search team toexecute the warrant within the time allowed by the warrant. The officer mustalso oversee the execution of the warrant in a way that protects officer safety,directs a thorough and professional search for the evidence, and avoidsunnecessary destruction of property. These difficult and important tasks

demand the officer's full attention in the heat of an ongoing and oftendangerous criminal investigation.

34 An officer who complies fully with all of these duties can be excused for not

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being aware that he had made a clerical error in the course of filling out the proposed warrant. See Maryland v. Garrison, 480 U. S. 79, 87 (1987)(recognizing "the need to allow some latitude for honest mistakes that are made

by officers in the dangerous and difficult process of making arrests andexecuting search warrants"). An officer who drafts an affidavit, types up anapplication and proposed warrant, and then obtains a judge's approval naturally

assumes that he has filled out the warrant form correctly. Even if the officer checks over the warrant, he may very well miss a mistake. We all tend towardmyopia when looking for our own errors. Every lawyer and every judge canrecite examples of documents that they wrote, checked, and doublechecked, butthat still contained glaring errors. Law enforcement officers are no different. Itwould be better if the officer recognizes the error, of course. It would be better still if he does not make the mistake in the first place. In the context of anotherwise proper search, however, an officer's failure to recognize his clerical

error on a warrant form can be a reasonable mistake.

35 The Court reaches a different result by construing the officer's error as amistake of law rather than a mistake of fact. According to the Court, the officer should not receive qualified immunity because "no reasonable officer could

believe that a warrant that plainly did not comply with [the particularity]requirement was valid." Ante, at 563. The majority is surely right that areasonable officer must know that a defective warrant is invalid. This much is

obvious, if not tautological. It is also irrelevant, for the essential question hereis whether a reasonable officer in petitioner's position would necessarily knowthat the warrant had a clerical error in the first place. The issue in this case iswhether an officer can reasonably fail to recognize a clerical error, not whether an officer who recognizes a clerical error can reasonably conclude that adefective warrant is legally valid.

36 The Court gives little attention to this important and difficult question. It

receives only two sentences at the very end of the Court's opinion. In the firstsentence, the Court quotes dictum from United States v. Leon, 468 U. S. 897,923 (1984), to the effect that "`a warrant may be so facially deficient — i.e., infailing to particularize the place to be searched or the things to be seized—thatthe executing officers cannot reasonably presume it to be valid.'" Ante, at 565.In the second sentence, the Court informs us without explanation that "[t]his issuch a case." Ibid. This reasoning is not convincing.

37 To understand the passage from Leon that the Court relies upon, it helps torecognize that most challenges to defective search warrants arise when officersrely on the defect and conduct a search that should not have occurred. Thetarget of the improper search then brings a civil action challenging the

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improper search, or, if charges have been filed, moves to suppress the fruits of the search. The inquiry in both instances is whether the officers' reliance on thedefect was reasonable. See, e. g., Garrison, supra (apartment wrongly searched

because the searching officers did not realize that there were two apartments onthe third floor and obtained a warrant to search the entire floor); Arizona v.

Evans, 514 U. S. 1 (1995) (person wrongly arrested and searched because a

court employee's clerical error led officer to believe a warrant existed for person's arrest); McCleary v. Navarro, 504 U. S. 966 (1992) (White, J.,dissenting from denial of certiorari) (house wrongly searched becauseinformant told officers the suspect lived in the second house on the right, butthe suspect lived in the third house on the right).

38 The language the Court quotes from Leon comes from a discussion of when "anofficer [who] has obtained a [defective] warrant and abided by its terms" has

acted reasonably. 468 U. S., at 922. The discussion notes that there are somecases in which "no reasonably well trained officer should rely on the warrant."

Id., at 923. The passage also includes several examples, among them the onethat the Court relies on in this case: "[D]epending on the circumstances of the

particular case, a warrant may be so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that theexecuting officers cannot reasonably presume it to be valid." Ibid.

39 The Court interprets this language to mean that a clerical mistake can be soobvious that an officer who fails to recognize the mistake should not receivequalified immunity. Read in context, however, the quoted language isaddressed to a quite different issue. The most natural interpretation of thelanguage is that a clerical mistake can be so obvious that the officer cannotreasonably rely on the mistake in the course of executing the warrant. In other words, a defect can be so clear that an officer cannot reasonably "abid[e] by itsterms" and execute the warrant as written. Id., at 922.

40 We confront no such issue here, of course. No one suggests that the officer reasonably could have relied on the defective language in the warrant. This is acase about an officer being unaware of a clerical error, not a case about anofficer relying on one. The respondents do not make the usual claim that theywere injured by a defect that led to an improper search. Rather, they make anunusual claim that they were injured simply because the warrant form did notcontain the correct description of the property to be seized, even though no

property was seized. The language from Leon is not on point.

41 Our Court has stressed that "the purpose of encouraging recourse to the warrant procedure" can be served best by rejecting overly technical standards when

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courts review warrants. Illinois v. Gates, 462 U. S. 213, 237 (1983). We havealso stressed that qualified immunity "provides ample protection to all but the

plainly incompetent or those who knowingly violate the law." Malley, 475 U.S.,at 341. The Court's opinion is inconsistent with these principles. Its analysisrequires our Nation's police officers to concentrate more on the correctness of

paper forms than substantive rights. The Court's new "duty to ensure that the

warrant conforms to constitutional requirements" sounds laudable, ante, at 563,n. 6, but would be more at home in a regime of strict liability than within the"ample room for mistaken judgments" that our qualified immunity

jurisprudence traditionally provides. Malley, supra, at 343.

42 For these reasons, I dissent.

43 JUSTICE THOMAS, with whom JUSTICE SCALIA joins, and with whomTHE CHIEF JUSTICE joins as to Part III, dissenting.

44 The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches andseizures, shall not be violated, and no Warrants shall issue, but upon probablecause, supported by Oath or affirmation, and particularly describing the placeto be searched, and the persons or things to be seized." The precise relationship

between the Amendment's Warrant Clause and Unreasonableness Clause isunclear. But neither Clause explicitly requires a warrant. While "it is of coursetextually possible to consider [a warrant requirement] implicit within therequirement of reasonableness," California v. Acevedo, 500 U. S. 565, 582(1991) (SCALIA, J., concurring in judgment), the text of the FourthAmendment certainly does not mandate this result. Nor does the Amendment'shistory, which is clear as to the Amendment's principal target (generalwarrants), but not as clear with respect to when warrants were required, if ever.Indeed, because of the very different nature and scope of federal authority andability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides muchguidance.

45 As a result, the Court has vacillated between imposing a categorical warrantrequirement and applying a general reasonableness standard. CompareThompson v. Louisiana, 469 U. S. 17, 20 (1984) (per curiam), with United States v. Rabinowitz, 339 U. S. 56, 65 (1950). The Court has most frequentlyheld that warrantless searches are presumptively unreasonable, see, e. g., Katz v. United States, 389 U. S. 347, 357 (1967); Payton v. New York, 445 U.S. 573,583 (1980), but has also found a plethora of exceptions to presumptiveunreasonableness, see, e. g., Chimel v. California, 395 U. S. 752, 762-763

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(1969) (searches incident to arrest); United States v. Ross, 456 U. S. 798, 800(1982) (automobile searches); United States v. Biswell, 406 U. S. 311, 315-317(1972) (searches of "pervasively regulated" businesses); Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 534-539 (1967)(administrative searches); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294,298 (1967) (exigent circumstances); California v. Carney, 471 U. S. 386, 390-

394 (1985) (mobile home searches); Illinois v. Lafayette, 462 U. S. 640, 648(1983) (inventory searches); Almeida-Sanchez v. United States, 413 U. S. 266,272 (1973) (border searches). That is, our cases stand for the illuminating

proposition that warrantless searches are per se unreasonable, except, of course,when they are not.

46 Today the Court holds that the warrant in this case was "so obviously deficient"that the ensuing search must be regarded as a warrantless search and thus

presumptively unreasonable. Ante, at 558-559. However, the text of the FourthAmendment, its history, and the sheer number of exceptions to the Court'scategorical warrant requirement seriously undermine the bases upon which theCourt today rests its holding. Instead of adding to this confusing jurisprudence,as the Court has done, I would turn to first principles in order to determine therelationship between the Warrant Clause and the Unreasonableness Clause. Buteven within the Court's current framework, a search conducted pursuant to adefective warrant is constitutionally different from a "warrantless search."

Consequently, despite the defective warrant, I would still ask whether thissearch was unreasonable and would conclude that it was not. Furthermore, evenif the Court were correct that this search violated the Constitution (and in

particular, respondents' Fourth Amendment rights), given the confused state of our Fourth Amendment jurisprudence and the reasonableness of petitioner'sactions, I cannot agree with the Court's conclusion that petitioner is not entitledto qualified immunity. For these reasons, I respectfully dissent.

47 * "[A]ny Fourth Amendment case may present two separate questions: whether the search was conducted pursuant to a warrant issued in accordance with thesecond Clause, and, if not, whether it was nevertheless `reasonable' within themeaning of the first." United States v. Leon, 468 U. S. 897, 961 (1984)(STEVENS, J., dissenting). By categorizing the search here to be a"warrantless" one, the Court declines to perform a reasonableness inquiry andignores the fact that this search is quite different from searches that the Courthas considered to be "warrantless" in the past. Our cases involving

"warrantless" searches do not generally involve situations in which an officer has obtained a warrant that is later determined to be facially defective, butrather involve situations in which the officers neither sought nor obtained awarrant. See, e. g., Anderson v. Creighton, 483 U. S. 635 (1987) (officer

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II

often competitive enterprise of ferreting out crime. Any assumption thatevidence sufficient to support a magistrate's disinterested determination to issuea search warrant will justify the officers in making a search without a warrantwould reduce the Amendment to a nullity and leave the people's homes secureonly in the discretion of police officers. . . . When the right of privacy mustreasonably yield to the right of search is, as a rule, to be decided by a judicial

officer, not by a policeman or government enforcement agent." Johnson v.United States, 333 U. S. 10, 13-14 (1948) (footnotes omitted).

51 But the actual contents of the warrant are simply manifestations of this protection. Hence, in contrast to the case of a truly warrantless search, where awarrant (due to a mistake) does not specify on its face the particular items to beseized but the warrant application passed on by the magistrate judge containssuch details, a searchee still has the benefit of a determination by a neutral

magistrate that there is probable cause to search a particular place and to seize particular items. In such a circumstance, the principal justification for applyinga rule of presumptive unreasonableness falls away.

52 In the instant case, the items to be seized were clearly specified in the warrantapplication and set forth in the affidavit, both of which were given to the Judge(Magistrate). The Magistrate reviewed all of the documents and signed thewarrant application and made no adjustment or correction to this application. Itis clear that respondents here received the protection of the Warrant Clause, asdescribed in Johnson and McDonald. Under these circumstances, I would nothold that any ensuing search constitutes a presumptively unreasonablewarrantless search. Instead, I would determine whether, despite the invalidwarrant, the resulting search was reasonable and hence constitutional.

53 Because the search was not unreasonable, I would conclude that it wasconstitutional. Prior to execution of the warrant, petitioner briefed the searchteam and provided a copy of the search warrant application, the supportingaffidavit, and the warrant for the officers to review. Petitioner orally reviewedthe terms of the warrant with the officers, including the specific items for which the officers were authorized to search. Petitioner and his search teamthen conducted the search entirely within the scope of the warrant applicationand warrant; that is, within the scope of what the Magistrate had authorized.

Finding no illegal weapons or explosives, the search team seized nothing. 298F. 3d 1022, 1025 (CA9 2002). When petitioner left, he gave respondents a copyof the search warrant. Upon request the next day, petitioner faxed respondents acopy of the more detailed warrant application. Indeed, putting aside the

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III

technical defect in the warrant, it is hard to imagine how the actual searchcould have been carried out any more reasonably.

54 The Court argues that this eminently reasonable search is nonethelessunreasonable because "there can be no written assurance that the Magistrateactually found probable cause to search for, and to seize, every item mentionedin the affidavit" "unless the particular items described in the affidavit are alsoset forth in the warrant itself." Ante, at 560. The Court argues that it was at least

possible that the Magistrate intended to authorize a much more limited searchthan the one petitioner requested. Ante, at 560-561. As a theoretical matter, thismay be true. But the more reasonable inference is that the Magistrate intendedto authorize everything in the warrant application, as he signed the applicationand did not make any written adjustments to the application or the warrantitself.

55 The Court also attempts to bolster its focus on the faulty warrant by arguingthat the purpose of the particularity requirement is not only to prevent generalsearches, but also to assure the searchee of the lawful authority for the search.

Ante, at 561. But as the Court recognizes, neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41 requires an officer to serve the warranton the searchee before the search. Ante, at 562, n. 5. Thus, a search should not

be considered per se unreasonable for failing to apprise the searchee of thelawful authority prior to the search, especially where, as here, the officer

promptly provides the requisite information when the defect in the papers isdetected. Additionally, unless the Court adopts the Court of Appeals' view thatthe Constitution protects a searchee's ability to "be on the lookout and tochallenge officers," while the officers are actually carrying out the search, 298F. 3d, at 1027, petitioner's provision of the requisite information the followingday is sufficient to satisfy this interest.

56 Even assuming a constitutional violation, I would find that petitioner is entitledto qualified immunity. The qualified immunity inquiry rests on "the `objectivelegal reasonableness' of the action, Harlow [v. Fitzgerald, 457 U. S. 800, 819(1982)], assessed in light of the legal rules that were `clearly established' at thetime it was taken." Anderson v. Creighton, 483 U. S., at 639. The outcome of this inquiry "depends substantially upon the level of generality at which the

relevant `legal rule' is . . . identified. For example, the right to due process of law is quite clearly established by the Due Process Clause, and thus there is asense in which any action that violates that Clause . . . violates a clearlyestablished right." Ibid. To apply the standard at such a high level of generality

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would allow plaintiffs "to convert the rule of qualified immunity . . . into a ruleof virtually unqualified liability simply by alleging violation of extremelyabstract rights." Ibid. The Court in Anderson criticized the Court of Appeals for considering the qualified immunity question only in terms of the petitioner's"right to be free from warrantless searches of one's home unless the searchingofficers have probable cause and there are exigent circumstances." Id., at 640.

The Court of Appeals should have instead considered "the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson'swarrantless search to be lawful, in light of clearly established law and theinformation the searching officers possessed." Id., at 641.

57 The Court errs not only by defining the question at too high a level of generality but also by assessing the question without regard to the relevant circumstances.Even if it were true that no reasonable officer could believe that a search of a

home pursuant to a warrant that fails the particularity requirement is lawfulabsent exigent circumstances — a proposition apparently established by dicta

buried in a footnote in Sheppard — petitioner did not know when he carried outthe search that the search warrant was invalid—let alone legally nonexistent.Petitioner's entitlement to qualified immunity, then, turns on whether his belief that the search warrant was valid was objectively reasonable. Petitioner's belief surely was reasonable.

58 The Court has stated that "depending on the circumstances of the particular case, a warrant may be so facially deficient . . . that the executing officerscannot reasonably presume it to be valid." United States v. Leon, 468 U. S., at923. This language makes clear that this exception to Leon 's good-faithexception does not apply in every circumstance. And the Court does not explainwhy it should apply here. As an initial matter, the Court does not even arguethat the fact that petitioner made a mistake in preparing the warrant wasobjectively unreasonable, nor could it. Given the sheer number of warrants

prepared and executed by officers each year, combined with the fact that thesesame officers also prepare detailed and sometimes somewhat comprehensivedocuments supporting the warrant applications, it is inevitable that officersacting reasonably and entirely in good faith will occasionally make such errors.

59 The only remaining question is whether petitioner's failure to notice the defectwas objectively unreasonable. The Court today points to no cases directing anofficer to proofread a warrant after it has been passed on by a neutralmagistrate, where the officer is already fully aware of the scope of the intendedsearch and the magistrate gives no reason to believe that he has authorizedanything other than the requested search. Nor does the Court point to any casesuggesting that where the same officer both prepares and executes the invalid

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warrant, he can never rely on the magistrate's assurance that the warrant is proper. Indeed, in Massachusetts v. Sheppard, 468 U. S. 981 (1984), the Courtsuggested that although an officer who is not involved in the warrantapplication process would normally read the issued warrant to determine theobject of the search, an executing officer who is also the affiant might not needto do so. Id., at 989, n. 6.

60 Although the Court contends that it does not impose a proofreading requirementupon officers executing warrants, ante, at 563, n. 6, I see no other way to readits decision, particularly where, as here, petitioner could have done nothingmore to ensure the reasonableness of his actions than to proofread the warrant.After receiving several allegations that respondents possessed illegal firearmsand explosives, petitioner prepared an application for a warrant to searchrespondents' ranch, along with a supporting affidavit detailing the history of

allegations against respondents, petitioner's investigation into these allegations,and petitioner's verification of the sources of the allegations. Petitioner properlyfilled out the warrant application, which described both the place to be searchedand the things to be seized, and obtained the Magistrate's signature on both thewarrant application and the warrant itself. Prior to execution of the warrant,

petitioner briefed the search team to ensure that each officer understood thelimits of the search. Petitioner and his search team then executed the warrantwithin those limits. And when the error in the search warrant was discovered,

petitioner promptly faxed the missing information to respondents. In my view, petitioner's actions were objectively reasonable, and thus he should be entitledto qualified immunity.

61 For the foregoing reasons, I respectfully dissent.